Recent Developments in Accessibility to Movie Theaters

Litigation Background

In 1995, several movie theater chains began constructing new theaters and renovating old ones in order to provide stadium-style seating in which much of the seating is set on a significant angle, thus allowing patrons to watch movies without their views being obstructed by the persons sitting in front of them. Because of the sharp angle of the seating, wheelchair access to stadium-style seating was severely limited, and most theater operators placed wheelchair seating areas at either the very front or the very back of the theaters. Patrons complained about such accommodations, particularly where the seating was in the first few rows of the theater as it, among other things, forced disabled patrons to crane their necks to view the screen. Thus, in 1999, the Justice Department brought suit against movie theater operators alleging that their seating plans violated the ADA. These suits were quickly followed by several lawsuits brought by individual disabled movie theater patrons. At issue was the interpretation of the then-existing ADA Accessibility Guidelines (“ADAAG”), which required that assembly areas provide “people with disabilities a choice of … lines of sight comparable to those for members of the general public.” ADAAG, 28 C.F.R. pt. 36, App. A at 4.33.3 (1999).

The first such case to be decided by an appellate court was Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000). On summary judgment, the court held in favor of the defendant movie theaters, finding that the term “lines of sight comparable to those for members of the general public” as used in section 4.33.3 of the ADAAG did not apply to viewing angles, but instead only mandated that there be no obstructions between the moviegoer and the screen. Id. at 789. Some movie theater chains entered into settlements with the Department of Justice agreeing to provide wheelchair seating in other than the first or last rows. For example, in 1991, United Artists Theatre Circuit, Inc. agreed to locate wheelchair-seating areas so that viewing angles would be in the same range as the best 50% to 60% of the seats in the theater. Nevertheless, it was not until 3 years later that another federal appellate court returned to the issue.

In 2003, both the Ninth Circuit Court of Appeals, in Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003), and the Second Circuit Court of Appeals, in USA v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003), held that the ADAAG requires “a viewing angle for wheelchair seating within the range of angles offered to the general public in the stadium-style seats.” Oregon Paralyzed Veterans of America, 339 F.3d at 1133; see also Cinemark USA, Inc., 348 F.3d at 578. Petitions for Certiorari were filed in both cases and on June 28, 2004, the Supreme Court let both rulings stand. Cinemark United States v. United States, 204 U.S. LEXIS 4609 (U.S. June 28, 2004); Regal Cinemas v. Stewmon, 2004 U.S. LEXIS 4607 (U.S. June 28, 2004). At the same time, several lower courts similarly found against theater operators. See USA v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73 (D. Mass. 2003); USA v. AMC Entertainment, Inc., 232 F. Supp. 2d 1092 (C.D. Cal. 2002).

State Laws and ADA Regulations

Given the ambiguity in the federal accessibility regulations, at least one state's legislature took action to ensure that movie theaters provide uniform seating for wheelchair-bound patrons. Minnesota's state law requires in relevant part:

In movie theaters with sloped floors, a majority of wheelchair seating spaces shall be located in the rear three-fourths of the auditorium. In movie theaters with stadium-type seating where the stadium seating begins 40 or more feet from the screen, a majority of wheelchair seating spaces shall be located on at least the first riser back from the screen or on the floor near the first riser. In movie theaters where the stadium seating is less than 40 feet from the screen, a majority of wheelchair seating spaces shall be located on at least the first riser back from the screen. Minn. R. 1341.0482(3)(2003).

However, a state-by-state and/or district-by-district approach will no longer be necessary. On July 23, 2004, after a decade-long process, the U.S. Access Board issued new Accessibility Guidelines for the construction and alteration of places of public accommodation so as to ensure that such facilities are in compliance with the ADA. The new ADAAG provides the basis for standards and regulations issued by, among other agencies, the Department of Justice, for enforcement of the ADA. The new ADAAG, effective Sept. 21, 2004, is substantially and significantly different from the prior guidelines, with changes having been made to virtually every section.

Given the heated debate over movie theater seating, it is no surprise that the Access Board directly addressed the issue. Specifically, the ADAAG was revised to provide that “[w]heelchair spaces shall provide spectators with choices of seating locations and viewing angles that are substantially equivalent to, or better than, the choices of seating locations and viewing angles available to all other spectators.” ADAAG F221.2.3 (July 23, 2004) (emphasis added). As the Board explained, “[c]onsistent with the overall intent of the ADA, individuals who use wheelchairs must be provided equal access so that their experience is substantially equivalent to that of other members of the audience. Thus, while individuals who use wheelchairs need not be provided with the best seats in the house, neither may they be relegated to the worst.” Id. at Advisory to F221.2.3. Thus, for new construction, the ADAAG makes clear that theaters with stadium-style seating cannot rely on only first and last row seating options for wheelchair patrons. (It is left to the Department of Justice to determine whether existing facilities must be altered to conform to the new ADAAG.)

Importantly, however, the ADAAG does not require, for the average movie theater, that wheelchair seating be made available on all rows. Rather, vertical dispersion “shall not be required in assembly areas with 300 or fewer seats if the wheelchair spaces provide viewing angles that are equivalent to, or better than, the average viewing angle provided in the facility.” Id. at F221.2.3.2(1). Similarly, horizontal dispersion is not required in smaller venues so long as accessible seats and companion seating for able-bodied individuals are in the middle of the row. Id. at F221.2.3.1(1).

Thus, in one fell swoop, years of litigation over accessibility in stadium-seating movie theaters has been nullified and the pre-existing conflict between circuit courts resolved. Theater owners now have a clearer direction in designing movie theater seating in compliance with the ADA.

Captioning

Litigation

Providing captioning services for deaf and hard of hearing patrons is another accessibility area that has been the subject of recent litigation in federal courts. While captioning of movies has never been directly addressed in the ADA regulations promulgated by the Department of Justice, the legislative history has supported theater owners' position that they are not required to provide open captioning of movies. H.R. Rep. No. 101-458 (II), at 108 (1990). (Open captioning refers to captioning that is visible to all viewers. Closed captioning refers to captioning that is seen only by those patrons who wish to see it.) At the same time, even in 1990, it was anticipated that “technological advances … may require public accommodations to provide auxiliary aids and services in the future.” Id. Earlier this year, exactly the type of technological advances anticipated by the history of the ADA regulations formed the basis of a settlement of a class action suit which will require a limited number of theaters in Washington, D.C. to provide closed captioning for first run movies and which is likely to provide the blueprint for future developments in this area.

In 2000, deaf and hard of hearing patrons in Oregon and Washington, D.C. commenced litigation against several theater owners, claiming that the theaters' failure to provide captioning systems violated the ADA. In 2002, a similar suit was filed in Texas. In all three cases, the plaintiffs argued that the regulations promulgated pursuant to Title III of the ADA that require places of public accommodation to make “modifications” and provide “auxiliary aids and services” as may be necessary to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently” from non-disabled patrons, 28 C.F.R. CH. I, ”36.302 & 36.303, should be interpreted to require theater owners to install captioning systems. What appears to be the impetus for this litigation was the development of new technologies which allowed for closed captioning of movies in a manner that would not alter the experience of hearing patrons and their increasing utilization in a variety of entertainment settings.

The Oregon case, Cornilles v. Regal Cinemas, Inc., was the first to reach a decision. In March of 2002, the court granted summary judgment in favor of the defendant theaters, holding that the ADA did not require movie theaters to caption for deaf patrons. Specifically, the court found that the cost of installing the leading closed captioning device, Rear Window' Captioning (“Rear Window'“), was “unreasonable as a matter of law [particularly] given the context of advancing technology, the availability of alternatives and the lack of compatibility between such a system and the majority of the films being produced.” Cornilles v. Regal Cinemas, Inc., 2002 U.S. Dist. LEXIS 7023 at *2 (D. Ore. Mar. 12, 2002). (Rear Window' Captioning was developed in the early 1990s by Rufus Butler Seder and Boston public television station WGBH in order to allow deaf and hard of hearing patrons to view movies with a minimal amount of disruption to the viewing experience of hearing patrons. It works by projecting captions from an LED read-out at the back of the movie theater, which captions can be seen by patrons with a clear viewing screen placed in the standard cup holders on each seat's armrest. Because the viewing devices are portable and adjustable, a patron using such a device can sit virtually anywhere in the theater.)

Approximately a year later, the court in Texas ruled the same way, holding that the mandated installation of a captioning system would constitute an undue burden on theater owners. (Public accommodations are not required to make modifications or provide auxiliary aids if to do so would require “significant difficulty or expense.” 28 C.F.R. '36.104.) Todd v. American Multi-Cinema, Inc., 2003 U.S. Dist. LEXIS 25317 at *14-15 (S.D. Tex. Aug. 6, 2003). Indeed, the court went even further, finding that the “access” mandated by the ADA refers to physical access, and that the plaintiffs did, indeed, have equal physical access to the movies being shown by the defendants. “Equal access does not mean equal enjoyment,” the court opined. Id. at *16.

Despite these rulings, in May 2004, the District Court for the District of Columbia approved a class action settlement in which AMC Entertainment, Inc. and Loews Cineplex Entertainment Corp. agreed to install Rear Window' in at least six of each company's theaters in the Washington D.C. area. The settlement came after the court refused to grant summary judgment in favor of the defendant movie theaters as had been done in Cornilles and Todd. Rather, the court held that there was a genuine dispute as to whether requiring the defendant theaters to install Rear Window' in a limited number of theaters would, in fact, be an “undue burden.” Ball v. AMC Entertainment, Inc., 246 F. Supp. 2d 17, 24-25 (D.C.D.C. 2003). In response, the parties entered into the settlement agreement that was subsequently approved by the court. Ball v. AMC Entertainment, Inc., 2003 U.S. Dist. LEXIS 25250 (D.C.D.C. May 3, 2004). While some disabled patrons criticized the settlement as not being broad enough, in light of the fact that the settlement would provide greater access to first run movies than had previously been available in any community, id. at *22, and because of the uncertainty that the plaintiffs would ultimately win their case, id. at *29, the court determined that the settlement was fair, adequate and reasonable, and would “set the standard for what other communities, at a very minimum, should be offering to all those who love what is a quintessentially American art form.” Id. at 35.

ADA Regulations and Legislation

As discussed above, on July 23, 2004, the U.S. Access Board issued new ADA Accessibility Guidelines. During the rule-making process, the Board specifically requested comments on movie captioning for the deaf and hard of hearing and received a significant number of responses supporting a requirement for captioning. 69 Fed. Reg. 44085 & 44138 (2004). Nevertheless, while noting that the current Department of Justice regulations encourage the provision of closed captioning, the Board expressly rejected any change to the current regulations that would require movie theaters to provide either an open or a closed captioning system. Id.

However, deaf patrons press on. One avenue being pursued by the deaf and hard of hearing to make movie theaters more accessible is the legislative process. In 2004, Minnesota Sen. Mark Dayton proposed an amendment to pending legislation, the JOBS Act, to provide a tax credit to movie studios and theaters that made captioned movies available to patrons. The proposed amendment did not make it through the House of Representatives, but will be considered by a conference committee that will attempt to reconcile the Senate and House versions of the legislation.

Conclusion

Compliance with the ADA has never been a simple matter, and certainly not for the owners and operators of movie theaters. With the issuance of new Accessibility Guidelines, some of these issues will be resolved while others will continue to be the subject of litigation most likely for years to come.

For the past 4 years, the subject of accessibility to movie theaters, primarily wheelchair access and captioning for the deaf and hard of hearing, has been the basis of much litigation in the federal courts. For wheelchair-bound patrons, the increasing number of theaters employing stadium-style seating spurred them to the courthouse while for the hearing impaired, it was the development of new technologies that gave impetus to their efforts. Although the plaintiffs have not always been successful, these lawsuits, as well as new Accessibility Guidelines for Buildings and Facilities issued under the Americans with Disabilities Act (“ADA”), are forcing theater owners to make changes to existing theaters and plan new theaters in different ways. (See related article, Proposed Revisions to the ADA's Physical Accessibility Guidelines Released, Sept. 2004 CLLS.)

Wheelchair Accessibility

On June 28, 2004, the U.S. Supreme Court let stand two cases which held that movie theaters with stadium-style seating must provide wheelchair-bound patrons with seating options providing viewing angles comparable to those available to able-bodied patrons. In doing so, the Supreme Court perpetuated a conflict between the various federal circuit courts as to how far movie theater owners must go to accommodate disabled patrons. However, the conflict was short lived; on July 23, 2004, the new Accessibility Guidelines directly addressed and resolved the issue.

Litigation Background

In 1995, several movie theater chains began constructing new theaters and renovating old ones in order to provide stadium-style seating in which much of the seating is set on a significant angle, thus allowing patrons to watch movies without their views being obstructed by the persons sitting in front of them. Because of the sharp angle of the seating, wheelchair access to stadium-style seating was severely limited, and most theater operators placed wheelchair seating areas at either the very front or the very back of the theaters. Patrons complained about such accommodations, particularly where the seating was in the first few rows of the theater as it, among other things, forced disabled patrons to crane their necks to view the screen. Thus, in 1999, the Justice Department brought suit against movie theater operators alleging that their seating plans violated the ADA. These suits were quickly followed by several lawsuits brought by individual disabled movie theater patrons. At issue was the interpretation of the then-existing ADA Accessibility Guidelines (“ADAAG”), which required that assembly areas provide “people with disabilities a choice of … lines of sight comparable to those for members of the general public.” ADAAG, 28 C.F.R. pt. 36, App. A at 4.33.3 (1999).

The first such case to be decided by an appellate court was Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000). On summary judgment, the court held in favor of the defendant movie theaters, finding that the term “lines of sight comparable to those for members of the general public” as used in section 4.33.3 of the ADAAG did not apply to viewing angles, but instead only mandated that there be no obstructions between the moviegoer and the screen. Id. at 789. Some movie theater chains entered into settlements with the Department of Justice agreeing to provide wheelchair seating in other than the first or last rows. For example, in 1991, United Artists Theatre Circuit, Inc. agreed to locate wheelchair-seating areas so that viewing angles would be in the same range as the best 50% to 60% of the seats in the theater. Nevertheless, it was not until 3 years later that another federal appellate court returned to the issue.

In 2003, both the Ninth Circuit Court of Appeals, in Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003), and the Second Circuit Court of Appeals, in USA v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003), held that the ADAAG requires “a viewing angle for wheelchair seating within the range of angles offered to the general public in the stadium-style seats.” Oregon Paralyzed Veterans of America , 339 F.3d at 1133; see also Cinemark USA, Inc., 348 F.3d at 578. Petitions for Certiorari were filed in both cases and on June 28, 2004, the Supreme Court let both rulings stand. Cinemark United States v. United States, 204 U.S. LEXIS 4609 (U.S. June 28, 2004); Regal Cinemas v. Stewmon, 2004 U.S. LEXIS 4607 (U.S. June 28, 2004). At the same time, several lower courts similarly found against theater operators. See USA v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73 (D. Mass. 2003); USA v. AMC Entertainment, Inc., 232 F. Supp. 2d 1092 (C.D. Cal. 2002).

State Laws and ADA Regulations

Given the ambiguity in the federal accessibility regulations, at least one state's legislature took action to ensure that movie theaters provide uniform seating for wheelchair-bound patrons. Minnesota's state law requires in relevant part:

In movie theaters with sloped floors, a majority of wheelchair seating spaces shall be located in the rear three-fourths of the auditorium. In movie theaters with stadium-type seating where the stadium seating begins 40 or more feet from the screen, a majority of wheelchair seating spaces shall be located on at least the first riser back from the screen or on the floor near the first riser. In movie theaters where the stadium seating is less than 40 feet from the screen, a majority of wheelchair seating spaces shall be located on at least the first riser back from the screen. Minn. R. 1341.0482(3)(2003).

However, a state-by-state and/or district-by-district approach will no longer be necessary. On July 23, 2004, after a decade-long process, the U.S. Access Board issued new Accessibility Guidelines for the construction and alteration of places of public accommodation so as to ensure that such facilities are in compliance with the ADA. The new ADAAG provides the basis for standards and regulations issued by, among other agencies, the Department of Justice, for enforcement of the ADA. The new ADAAG, effective Sept. 21, 2004, is substantially and significantly different from the prior guidelines, with changes having been made to virtually every section.

Given the heated debate over movie theater seating, it is no surprise that the Access Board directly addressed the issue. Specifically, the ADAAG was revised to provide that “[w]heelchair spaces shall provide spectators with choices of seating locations and viewing angles that are substantially equivalent to, or better than, the choices of seating locations and viewing angles available to all other spectators.” ADAAG F221.2.3 (July 23, 2004) (emphasis added). As the Board explained, “[c]onsistent with the overall intent of the ADA, individuals who use wheelchairs must be provided equal access so that their experience is substantially equivalent to that of other members of the audience. Thus, while individuals who use wheelchairs need not be provided with the best seats in the house, neither may they be relegated to the worst.” Id. at Advisory to F221.2.3. Thus, for new construction, the ADAAG makes clear that theaters with stadium-style seating cannot rely on only first and last row seating options for wheelchair patrons. (It is left to the Department of Justice to determine whether existing facilities must be altered to conform to the new ADAAG.)

Importantly, however, the ADAAG does not require, for the average movie theater, that wheelchair seating be made available on all rows. Rather, vertical dispersion “shall not be required in assembly areas with 300 or fewer seats if the wheelchair spaces provide viewing angles that are equivalent to, or better than, the average viewing angle provided in the facility.” Id. at F221.2.3.2(1). Similarly, horizontal dispersion is not required in smaller venues so long as accessible seats and companion seating for able-bodied individuals are in the middle of the row. Id. at F221.2.3.1(1).

Thus, in one fell swoop, years of litigation over accessibility in stadium-seating movie theaters has been nullified and the pre-existing conflict between circuit courts resolved. Theater owners now have a clearer direction in designing movie theater seating in compliance with the ADA.

Captioning

Litigation

Providing captioning services for deaf and hard of hearing patrons is another accessibility area that has been the subject of recent litigation in federal courts. While captioning of movies has never been directly addressed in the ADA regulations promulgated by the Department of Justice, the legislative history has supported theater owners' position that they are not required to provide open captioning of movies. H.R. Rep. No. 101-458 (II), at 108 (1990). (Open captioning refers to captioning that is visible to all viewers. Closed captioning refers to captioning that is seen only by those patrons who wish to see it.) At the same time, even in 1990, it was anticipated that “technological advances … may require public accommodations to provide auxiliary aids and services in the future.” Id. Earlier this year, exactly the type of technological advances anticipated by the history of the ADA regulations formed the basis of a settlement of a class action suit which will require a limited number of theaters in Washington, D.C. to provide closed captioning for first run movies and which is likely to provide the blueprint for future developments in this area.

In 2000, deaf and hard of hearing patrons in Oregon and Washington, D.C. commenced litigation against several theater owners, claiming that the theaters' failure to provide captioning systems violated the ADA. In 2002, a similar suit was filed in Texas. In all three cases, the plaintiffs argued that the regulations promulgated pursuant to Title III of the ADA that require places of public accommodation to make “modifications” and provide “auxiliary aids and services” as may be necessary to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently” from non-disabled patrons, 28 C.F.R. CH. I, ”36.302 & 36.303, should be interpreted to require theater owners to install captioning systems. What appears to be the impetus for this litigation was the development of new technologies which allowed for closed captioning of movies in a manner that would not alter the experience of hearing patrons and their increasing utilization in a variety of entertainment settings.

The Oregon case, Cornilles v. Regal Cinemas, Inc., was the first to reach a decision. In March of 2002, the court granted summary judgment in favor of the defendant theaters, holding that the ADA did not require movie theaters to caption for deaf patrons. Specifically, the court found that the cost of installing the leading closed captioning device, Rear Window' Captioning (“Rear Window'“), was “unreasonable as a matter of law [particularly] given the context of advancing technology, the availability of alternatives and the lack of compatibility between such a system and the majority of the films being produced.” Cornilles v. Regal Cinemas, Inc., 2002 U.S. Dist. LEXIS 7023 at *2 (D. Ore. Mar. 12, 2002). (Rear Window' Captioning was developed in the early 1990s by Rufus Butler Seder and Boston public television station WGBH in order to allow deaf and hard of hearing patrons to view movies with a minimal amount of disruption to the viewing experience of hearing patrons. It works by projecting captions from an LED read-out at the back of the movie theater, which captions can be seen by patrons with a clear viewing screen placed in the standard cup holders on each seat's armrest. Because the viewing devices are portable and adjustable, a patron using such a device can sit virtually anywhere in the theater.)

Approximately a year later, the court in Texas ruled the same way, holding that the mandated installation of a captioning system would constitute an undue burden on theater owners. (Public accommodations are not required to make modifications or provide auxiliary aids if to do so would require “significant difficulty or expense.” 28 C.F.R. '36.104.) Todd v. American Multi-Cinema, Inc., 2003 U.S. Dist. LEXIS 25317 at *14-15 (S.D. Tex. Aug. 6, 2003). Indeed, the court went even further, finding that the “access” mandated by the ADA refers to physical access, and that the plaintiffs did, indeed, have equal physical access to the movies being shown by the defendants. “Equal access does not mean equal enjoyment,” the court opined. Id. at *16.

Despite these rulings, in May 2004, the District Court for the District of Columbia approved a class action settlement in which AMC Entertainment, Inc. and Loews Cineplex Entertainment Corp. agreed to install Rear Window' in at least six of each company's theaters in the Washington D.C. area. The settlement came after the court refused to grant summary judgment in favor of the defendant movie theaters as had been done in Cornilles and Todd. Rather, the court held that there was a genuine dispute as to whether requiring the defendant theaters to install Rear Window ' in a limited number of theaters would, in fact, be an “undue burden.” Ball v. AMC Entertainment, Inc., 246 F. Supp. 2d 17, 24-25 (D.C.D.C. 2003). In response, the parties entered into the settlement agreement that was subsequently approved by the court. Ball v. AMC Entertainment, Inc., 2003 U.S. Dist. LEXIS 25250 (D.C.D.C. May 3, 2004). While some disabled patrons criticized the settlement as not being broad enough, in light of the fact that the settlement would provide greater access to first run movies than had previously been available in any community, id. at *22, and because of the uncertainty that the plaintiffs would ultimately win their case, id. at *29, the court determined that the settlement was fair, adequate and reasonable, and would “set the standard for what other communities, at a very minimum, should be offering to all those who love what is a quintessentially American art form.” Id. at 35.

ADA Regulations and Legislation

As discussed above, on July 23, 2004, the U.S. Access Board issued new ADA Accessibility Guidelines. During the rule-making process, the Board specifically requested comments on movie captioning for the deaf and hard of hearing and received a significant number of responses supporting a requirement for captioning. 69 Fed. Reg. 44085 & 44138 (2004). Nevertheless, while noting that the current Department of Justice regulations encourage the provision of closed captioning, the Board expressly rejected any change to the current regulations that would require movie theaters to provide either an open or a closed captioning system. Id.

However, deaf patrons press on. One avenue being pursued by the deaf and hard of hearing to make movie theaters more accessible is the legislative process. In 2004, Minnesota Sen. Mark Dayton proposed an amendment to pending legislation, the JOBS Act, to provide a tax credit to movie studios and theaters that made captioned movies available to patrons. The proposed amendment did not make it through the House of Representatives, but will be considered by a conference committee that will attempt to reconcile the Senate and House versions of the legislation.

Conclusion

Compliance with the ADA has never been a simple matter, and certainly not for the owners and operators of movie theaters. With the issuance of new Accessibility Guidelines, some of these issues will be resolved while others will continue to be the subject of litigation most likely for years to come.